Are Restorative Justice Principles Universal - Essay Example

Running header: Restorative justice Student’s name: Instructor’s name: Subject code: Date of submission: To what extent can restorative justice responses to offending be applied within any criminal justice system? Are restorative justice principles ‘universal?’ Restorative justice is an alternative approach to justice which focuses on the needs of both the offender and the victim as opposed to the need to satisfy the abstract principles of law (need to punish). In other words, victims are given an active role in the dispute while offenders are encouraged to take responsibility for the offence committed for instance by apologising, doing community service or returning stolen property. Restorative justice focuses on crime and wrongdoing as committed against a community or the individual rather than the state (Zahra, 50). It may also involve fostering dialogue between the offender and the victim where the victim shows a high rate of satisfaction and the offender shows true accountability. It is a term that involves the use of peaceful approaches to harm, problem solving and violation of human and legal rights. The approaches range from peace making tribunals to innovations within juvenile as well as criminal justice systems, schools, social services as well as communities and seek to ensure continued safety and dignity for all the concerned parties (Mika,61). This paper seeks to examine the extent to which restorative justice responses to offending can be applied within any criminal justice system and whether restorative justice principles are universal. In so doing, the paper will consider the features of restorative justice as well as the areas in which it can be used as well as the areas where it may not be applicable. Restorative justice is not a definite practice but rather a combination of values that may adjust the universal practice of a group or agency with respect to crime. Such principles include; making room for the individual participation of the concerned parties i.e. the victim, offender and at times their families or communities, seeing criminal activities in their social context, a preventive problem solving orientation as well as creativity of practice (Brown, 55). As such, restorative justice is a criminal justice entrenched in the social context stressing on its connection to the other components rather than an isolated closed system. The objectives of restorative justice include the following; Attending fully to the needs of the victim be they material, financial, social and emotional as well as the needs of those who are close to the victim who may be similarly affected. Prevention of reoffending by the integration of offenders into the society. Helping the offenders take active and full responsibility for their acts. Creation of a working community which supports the rehabilitation of criminals and victims and which is active in crime prevention and Provision of a means to avoid escalation of legal justice, the associated costs and delays (Galaway, 48). The above objectives are also the objectives of any criminal justice system. As such, restorative justice may find great use in the criminal justice system since apart from ensuring that the offender is punished, it also ensures that the needs of the victim are met and that the offender is rehabilitated accordingly. As such, any criminal justice system that applies the principles of restorative justice is highly likely to be successful in its attempts to combat crime. It is obvious that any crime that is committed has its origin in the social conditions as well as relationships in the community concerned. As such, crime prevention must therefore be dependent on the community’s involved taking active responsibility in collaboration with the local and central government in remedying the conditions that cause criminal activities. Any criminal justice system must also seek to facilitate the personal involvement of the parties concerned in order to fully resolve the after mirth of crime (Terry, 105). Due to the fact that restorative justice principles advocate for the involvement of both the parties to a crime as well as the community concerned, it is no doubt then that it can be effectively applied in any criminal justice system as a means of response to offending. Any criminal justice system must also apply measures that are flexible enough to respond to particular exigencies, personal needs and potential for action in each case (West, 182). Furthermore, partnership as well as common objectives among justice agencies and between them and the community are of extreme importance if optimal effectiveness and efficiency is to be realised in the quest for criminal justice. Justice must also consist of a balanced approach where no single objective is allowed to dominate the others (Braithwaite, 75). The principles of restorative justice strive to provide for all these needs for an effective and efficient criminal justice system which implies that the restorative justice responses to offending can to a great extent be applied to any criminal justice system. The principles of restorative justice may take different forms but with some aspects in common. In restorative justice systems, the victims are accorded the opportunity to express the full impact of the crime upon his or her life, receive answers to any disturbing questions he or she may have regarding the criminal incident as well as have the chance to participate in holding the offender responsible (accountable for the offence he or she committed (Liebmann, 327). Offenders on the other hand are given the opportunity to give their account about why they committed the crime and how it has affected them (their lives). They are also accorded the opportunity to reconcile with the victim against whom they committed the offence to the degree that is possible through offering some form of compensation. Such compensation may include money, general community service, community service that is specific to the deed, engagement in self education in order to prevent recidivism as well as expression of remorsefulness. Furthermore, restorative justice can be applied in a wide variety of context which may include a court room, within a community or even in a non profit making organisation (Hennessey, 77). For example, a first time offender or a petty offender may be required to fulfil a restitution agreement after which the charges are dismissed. Such restitution may include prison time and other punishments. In a communal context, the parties concerned meet and determine the experience and impact of the crime for all and a plan is made for prevention of future occurrence of crimes as well as for the offender to heal the damage he/she has caused to the victim. The community also hold the offender accountable for the adherence to the restitution plan. Although the principles of restorative justice make it to be best suited for application in any criminal justice system, there are some reasons that limit the extent to which it can be applied in any criminal justice system. For instance, restorative justice practices are purely based upon voluntary cooperation of the parties involved in the dispute. In case one party is unwilling to participate, its applicability is greatly reduced. In case both the parties are not willing to participate in the process, then the only option left is for justice to take its formal course (Katharine, 32). Therefore, traditional forms of justice remain relevant in dealing with cases where restorative justice is inapplicable owing to the circumstances or fails as a result of lack of cooperation or failure to arrive at a mutually acceptable resolution. However, although lack of cooperation has been cited as a major drawback to the application of restorative justice in criminal justice systems, research indicates that majority of individuals offered a chance to participate in restorative justice would want to do so and the rates of agreements have been noted to be high. Failure to carry out agreements have been also been noted to be much lower than failure to pay fines or other compensations ordered by traditional courts (Simon, 109). In fact, Restorative justice has been termed as more accessible and attractive to individuals as it provides them with flexibility to manoeuvre and is easier to understand than legal procedures. Due to the fact that restorative justice attempts to involve communities, the available level of resources and skills may hinder the extent of its application in criminal justice systems. Nowadays, communities are no longer integrated as they used to be, there has also been greater emphasis on individual autonomy and privacy while major social divides occur between cultures as well as age groups (Nelson, 111). This means that greater communal involvement would call for increased education, training as well as practical resources in some areas more than the others. There also exist social injustices and inequalities in and between communities. Social divisions tend to hinder the effectiveness of voluntary participation. The extent to which effectual communities exist will largely depend on other societal policies other than criminal justice (Denborough, 15). These limitations of restorative justice therefore act as barriers to the success of crime control by any criminal justice system and therefore hinder the extent to which restorative justice can be applied to any form of criminal justice system. There some forms of crimes in which restorative justice can not be applied as a response to offending. In fact, some people have argued that restorative justice is only applicable to minor offences although this might not be the case. There has also been concerns regarding the use of restorative justice in the context of such crimes as rape a as well as domestic violence owing to the fact that the meeting of both the offender and the victim which is common in restorative justice is likely to lead to revictimisation or encounters that are severely power imbalanced (Cameron,65). It is also not clear how restorative justice can be applied in a crime where the victim has been murdered by the offender. It is therefore clear that although it is a good approach to criminal justice, it can not fully replace criminal justice but should be used in conjunction with the criminal justice systems (Bublick, 1453). Similar to the way there is lower order legal procedures for minor criminal offences, there should also be lower Oder restorative justices for minor offenders so as to prioritise cases where greater efforts may have greater payoff. Although the goals and values of restorative justice are not universal owing to the fact that it’s practiced differently in different places of the world, the basic principles of restorative justice are universal(Coker,1340). In all the places where restorative justice has been practiced (and continues to be practiced), the main aims of involving the concerned parties in dispute resolution and hence reducing reoffending and increasing understanding between the parties are common. In addition, the principle of restitution is common in all the places where restorative justice is (has been) practiced. For example, in Israel restitution for property crimes was common. In Sumer the law required restitution for offences of violence. Even Hammurabi of Babylon prescribed restitution for property offences (Herman, 583). This implies that the fundamental principles of ensuring the victim is involved and satisfied with the judgement are universal principles of restorative justice. Even in the present world, most of our criminal justice systems are based on the basic principles of restorative justice i.e. penalising the perpetrator by fining them or imprisoning them. However, the current system does not concern itself with the harmed party to a great extent. This inadequacy is even more apparent in dealing with actions by man that result in destruction of the wider society. Imposing fines on corporations that harm the environment may be a deterrent although it fails to repair the damaged relationship (Letimer, 133). Therefore, restorative justice should be used in such cases by involving the community concerned (victim) in solving such a dispute as this will not only be a deterrent but also repair the damaged relationship. Even in the present world, the principles of restorative justice have found their use in various places of the world (Julich, 7). The truth, justice and reconciliation commission that was established in South Africa with the aim of investigating apartheid offences adopted an approach of restorative justice. Restorative justice has been used successfully in the United Kingdom in the Glasgow restorative justice service that was set up in 2003 with the aim of encouraging young people to take an active responsibility for the effects of their behaviour – not only on the harmed but to themselves and the wider society (Johnstone, 100). In Australia and indeed in many parts of the world, restorative justice programs mainly focus on criminal activities committed by minors. However, the same principles could be extended d and used in resolving criminal activities committed by adult offenders. Conclusion As has been from the preceding discussion, the principles of restorative justice can to a great extent be used in any criminal justice system. The areas where restorative justice can be used in resolving criminal offences range from minor criminal offences such as those committed by small children at school to big and serious offences such as those committed during the apartheid rule in South Africa. However, the success of restorative justice principles in any criminal justice system will greatly depend on the willingness of the parties concerned to participate in the process. Where the parties concerned are not willing to participate in the process, there is no option but for the law to take its normal course. Furthermore, the applicability of restorative justice in any criminal justice system will also to a great extent depend on the nature and the magnitude of the crime committed. For example, the application of restorative justice in solving cases of rape or domestic violence has been greatly questioned. However, the principles of restorative justice are universal and can be used with great success in solving criminal disputes and eventually ensuring satisfaction of the victim and restoration of the offender. Work cited: Zahra, H. “Fundamental concepts of restorative justice.” Contemporary justice review 7 (2007): 44-55. Mika, H. “Retributive justice, restorative justice.” Australian journal on contemporary justice 2 (2005): 45- 69. Brown, J. “Can mediation help stop offending?” Probation journal 2(2003):54-56. Wright, M. Mediation & criminal justice. London: Sage, 2002. Galaway, B. “Some questions answered about FGCs.” Family group conferences and youth justice 3 (2004):45-52. Terry, W. Justice for victims and offenders. Milton Keynes: Open University press, 2010. West, B. Prison of promise. Winchester: Waterside press, 2007. Braithwaite, J. Restorative justice and responsive regulation. Melbourne: Light House Publishers. Liebmann, M. Restorative justice: how it works. London: Jessica Kingsley publishers, 2007. Hennessey, H. “Assessing reoffending in restorative justice conferences.” Australian and New Zealand journal of criminology 38.1 (2005): 77. Katharine, B.”Taking restorative justice seriously.” Canterbury law review 13 (2004):31-33. Simon, V. The empowerment tradition in American social work. New York: Columbia university press, 2004. Nelson, B. Positive discipline. New York: Ballantine books, 2005. Denborough, D. Beyond the prison: gathering dreams of freedom. Adelaide, South Australia: Dulwich centre publications, 2006. Cameron, A. “Stopping the violence: Canadian feminist debates on restorative justice and intimate violence.” Theoretical criminology 10 (2006):49-66. Bublick, E. “Citizen no duty rules: rape victims and comparative fault.” The Columbia law review 99 (2006):1413-1490. Coker, D. “Race poverty and the crime-centred responses to domestic violence.” violence against women 10 (2004):1331-1353. 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